{ "id": 9189879, "name": "NELLIE H. MELTON, Plaintiff v. FAMILY FIRST MORTGAGE CORPORATION, FLAGSTAR BANK, FSB, UNION PLANTERS BANK NA, T. DAN WOMBLE as Trustee on a Deed of Trust made by the Plaintiff, and LORI MELTON FRYE, Defendants", "name_abbreviation": "Melton v. Family First Mortgage Corp.", "decision_date": "2003-02-18", "docket_number": "No. COA02-221", "first_page": "129", "last_page": "139", "citations": [ { "type": "official", "cite": "156 N.C. App. 129" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "136 S.E. 118", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "192 N.C. 798", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627022 ], "year": 1926, "pin_cites": [ { "page": "802" } ], "opinion_index": 0, "case_paths": [ "/nc/192/0798-01" ] }, { "cite": "130 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "544" } ], "opinion_index": 0 }, { "cite": "259 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560578 ], "year": 1963, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0359-01" ] }, { "cite": "130 S.E. 40", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "pin_cites": [ { "page": "43" } ], "opinion_index": 0 }, { "cite": "190 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605013 ], "year": 1925, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nc/190/0397-01" ] }, { "cite": "183 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "120", "parenthetical": "quoting Furst v. Merritt, 190 N.C. 397, 401, 130 S.E. 40, 43 (1925)" } ], "opinion_index": 0 }, { "cite": "279 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567842 ], "year": 1971, "pin_cites": [ { "page": "369", "parenthetical": "quoting Furst v. Merritt, 190 N.C. 397, 401, 130 S.E. 40, 43 (1925)" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0361-01" ] }, { "cite": "167 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553959 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/4/0432-01" ] }, { "cite": "173 S.E. 320", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "327" } ], "opinion_index": 0 }, { "cite": "206 N.C. 144", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629170 ], "year": 1934, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/206/0144-01" ] }, { "cite": "344 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "74", "parenthetical": "quoting Bolich v. Insurance Company, 206 N.C. 144, 156, 173 S.E. 320, 327 (1934)" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521348 ], "year": 1986, "pin_cites": [ { "page": "65", "parenthetical": "quoting Bolich v. 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Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 928, "char_count": 24941, "ocr_confidence": 0.755, "pagerank": { "raw": 2.8817963323976254e-07, "percentile": 0.8436256322279793 }, "sha256": "3d5a2221605604a0b93cbd8d92afb22eb7230e5e7c749fd47b3e5887d59f5818", "simhash": "1:2fa145aa6d3a24fc", "word_count": 3959 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge TIMMONS-GOODSON concurs in part and dissents in part in a separate opinion." ], "parties": [ "NELLIE H. MELTON, Plaintiff v. FAMILY FIRST MORTGAGE CORPORATION, FLAGSTAR BANK, FSB, UNION PLANTERS BANK NA, T. DAN WOMBLE as Trustee on a Deed of Trust made by the Plaintiff, and LORI MELTON FRYE, Defendants" ], "opinions": [ { "text": "HUNTER, Judge.\nNellie H. Melton (\u201cplaintiff\u2019) appeals from the trial court\u2019s order of summary judgment in favor of defendants Family First Mortgage Corporation (\u201cFamily First\u201d), Flagstar Bank, FSB (\u201cFlagstar\u201d) and Union Planters Bank NA (\u201cUnion Planters\u201d). We affirm for the reasons set forth herein.\nPlaintiff, a borrower under a note secured by a deed of trust (\u201cmortgage\u201d), brought suit against Family First (plaintiff\u2019s lender); Flagstar (a bank that purchased the mortgage soon after its execution); Union Planters (another bank that subsequently purchased the mortgage from Flagstar); and Lori Melton Frye (plaintiff\u2019s adult granddaughter, hereinafter \u201cFrye\u201d). Plaintiff alleged in her complaint that defendant Frye engaged in a pattern of activity designed to defraud plaintiff of certain of her assets. Plaintiff specifically alleged that Frye, after moving in with plaintiff, administered medications to her and gained control over plaintiff\u2019s finances, using them for her own benefit and to the detriment of plaintiff. Plaintiff alleged that Frye, in August of 1997, completed an application for a $50,000.00 loan on plaintiffs home. Plaintiff claimed that Frye, without plaintiff\u2019s knowledge, instructed Family First to process the loan application .and, upon its approval, arranged to close the loan. Plaintiff alleged that Frye persuaded her to obtain the loan by falsely telling her that her son had incurred substantial debt in plaintiffs name and that plaintiff needed to borrow the money to pay off this debt.\nPlaintiff claimed that she was entitled to damages for unfair and deceptive practices by Family First and Flagstar (based on excessive loan fees or discounts, knowing and willful disregard of the North Carolina reverse mortgage statute, and fraud); common law fraud by Family First and Flagstar (based on alleged failure to make disclosures to plaintiff); and civil conspiracy by Family First and Flagstar to commit unfair trade practices and common law fraud. Plaintiff further sought rescission of the mortgage which was currently held by Union Planters.\nDefendants Family First, Flagstar, and Union Planters moved for summary judgment. After a hearing was held on the motions, the trial court entered summary judgment in favor of defendants Family First, Flagstar, and Union Planters on 6 November 2001 as to all claims against those defendants. On 29 April 2002, a consent order of dismissal as to plaintiffs pending claims against defendant Frye was entered pursuant to Rule 41(a)(2) of the- North Carolina Rules of Civil Procedure. Plaintiff appeals from the order of summary judgment. ,\nWe initially note that plaintiff has only presented arguments in her brief regarding her claims of unfair or deceptive practices and rescission of the mortgage. Accordingly, our review will be limited to those issues. See N.C.R. App. P. 28(b)(6).\nI.\nWe will first address whether summary judgment was proper on the claims against Flagstar for unfair and deceptive practices. \u201c \u2018Under N.C. Gen. Stat. \u00a7 75-1.1, the question of what constitutes an unfair or deceptive trade practice is an issue of law.\u2019 \u201d Eastover Ridge, L.L.C. v. Metric Constructors, Inc., 139 N.C. App. 360, 363, 533 S.E.2d 827, 830 (citation omitted), disc. review denied, 353 N.C. 262, 546 S.E.2d 93 (2000). Therefore, the determination of whether an act or practice is unfair or deceptive is generally made by the trial court based on the jury\u2019s findings. Id. However, a court may grant summary judgment on a claim of unfair and deceptive practices when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. A defendant moving for summary judgment bears the burden of showing: \u201c(1) that an essential element of plaintiffs claim is nonexistent; (2) that discovery indicates plaintiff cannot produce evidence to support an essential element; or (3) that plaintiff cannot surmount an affirmative defense.\u201d Id. After a defendant has met that burden, the plaintiff must forecast evidence establishing that a prima facie case exists. Id.\nUnder N.C. Gen. Stat. \u00a7 75-1.1(a) (2001), unfair or deceptive acts or practices in or affecting commerce, are unlawful. The necessary elements for a claim under N.C. Gen. Stat. \u00a7 75-1.1 are: \u201c(1) an unfair or deceptive act or practice, (2) in or affecting commerce, which (3) proximately caused actual injury to the claimant.\u201d Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 35, 568 S.E.2d 893, 901 (2002). \u201cA. practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\u201d Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). A practice is deceptive if it \u201cpossessed] the tendency or capacity to mislead, or create[s] the likelihood of deception.\u201d Overstreet v. Brookland, Inc., 52 N.C. App. 444, 453, 279 S.E.2d 1, 7 (1981).\nAfter carefully reviewing the record, we conclude that the trial court\u2019s grant of summary judgment in favor of Flagstar was proper since Flagstar had no dealings with plaintiff in connection with the execution of the mortgage. Plaintiff did not meet with any Flagstar representative, did not correspond with Flagstar, and had no relationship with Flagstar until Flagstar bought the mortgage subsequent to plaintiffs execution of the mortgage. Plaintiff indicated that she never had any dealings with Flagstar. Moreover, Family First\u2019s employee, Leann Dunagan, and the closing attorney indicated in their depositions that as far as they knew, Flagstar had not had any contact with plaintiff. In addition, there is no evidence suggesting that Family First was acting as an agent for Flagstar. In fact, the mortgage purchase agreement includes a provision which states that the mortgage purchase agreement and transactions entered into pursuant thereto shall not create an agency relationship between seller and buyer. Therefore, there is no evidence that Flagstar committed improprieties with regard to the execution of the mortgage. Accordingly, we conclude the trial court was proper in granting summary judgment in favor of defendant Flagstar.\nII.\nWe now turn to whether summary judgment was properly entered on plaintiffs claims against Family First for unfair and deceptive practices. Plaintiff sets out numerous allegations in her brief which she claims constitute unfair and deceptive practices. However, after reviewing the record and plaintiffs list of grievances, we conclude that plaintiff has failed to show any improper conduct on Family First\u2019s part, amounting to unfair or deceptive practices contemplated by N.C. Gen. Stat. \u00a7 75-1.1.\nPlaintiff first asserts that Family First intentionally refused to investigate numerous red flags of fraud and undue influence and allowed defendant Frye to engage in fraud. Plaintiff claims that the failure of Family First to question the circumstances of the loan were a breach of industry standards and common decency. However, plaintiff has failed to cite any legal authority to support her argument. Therefore, this argument is deemed abandoned. See N.C.R. App. P. 28(b)(6).\nPlaintiff next contends Family First\u2019s failure to conduct an in-person interview of plaintiff before the execution of the mortgage constituted an unfair or deceptive act or practice. Plaintiff has failed to provide, and we have failed to find, any cases in which a Court has held that such a failure violates N.C. Gen. Stat. \u00a7 75-1.1. Plaintiff points to plaintiff\u2019s discovery responses which suggest that Mattie Barney (\u201cBarney\u201d), a retired banker, \u201cwould testify\u201d that there should have been an in-person interview. However, no affidavit nor other form of sworn testimony was submitted to the trial court in which Barney testified that industry standards had been violated. Thus, the trial court did not find plaintiff\u2019s discovery responses regarding what Barney \u201cwould testify\u201d competent evidence from which it could rely. We conclude plaintiff has presented no competent evidence that Family First\u2019s failure to interview plaintiff in-person constitutes an unfair or deceptive act or practice.\nPlaintiff additionally argues Family First failed to act in good faith by not disclosing that more than ten percent (10%) of the loan proceeds would be paid to the broker and mortgage company as fees and expenses. However, we note that plaintiff testified that she was provided with a list of all fees at the closing, and knew and understood the consequences of the fees. Further the closing attorney testified that he reviewed the fees and loan documents with plaintiff and that those documents were valid. Therefore, plaintiffs argument lacks merit.\nPlaintiff next asserts that Family First either forged plaintiffs name to a document, or accepted a forged signature for processing her application. However, plaintiff has provided no substantial evidence of such forgery. She merely provided the trial court with two credit authorization forms containing plaintiffs purported signature and argues that only one could have been signed by plaintiff since the signatures are so different. Moreover, plaintiff presented no evidence that Family First was aware of the purported forgery nor evidence that plaintiff would not have consented to the credit authorizations. Therefore, we conclude this allegation lacks merit.\nPlaintiff also argues that Family First improperly backdated loan application documents. Assuming that the loan application documents were backdated, however, plaintiff has failed to present any evidence of harm. As stated previously, a necessary element for a claim under N.C. Gen. Stat. \u00a7 75-1.1 is that the unfair or deceptive act or practice proximately caused actual injury to the claimant. Boyce, 153 N.C. App. at 35, 568 S.E.2d at 901. We therefore conclude that plaintiff has failed to forecast evidence supporting the essential elements of a claim under N.C. Gen. Stat. \u00a7 75-1.1 based on this allegation.\nPlaintiff next asserts that Family First failed to disclose that Flagstar would pay Family First a \u201cyield spread premium\u201d or kickback in violation of federal law. Plaintiff relies on Moses v. Citicorp Mortg., Inc., 982 F. Supp. 897 (E.D.N.Y. 1997), to support her argument. We find the instant case distinguishable. The Court in Moses held that a suit regarding \u201cyield spread premiums\u201d brought by mortgage borrowers against lenders for unfair trade practices under New York law was not subject to dismissal for failure to state a claim. Id. In Moses, the plaintiffs alleged that\ndefendants had agreements with mortgage brokers . . . under which plaintiffs were not advised \u201cof the actual interest rates and loan terms they were approved for, but instead [they were] advised . . . that they had been approved at interest rates and points which were higher than the actual rates [defendants were] prepared to charge.\u201d\nId. at 903. In the instant case, plaintiff has made no such allegation nor provided evidence to support such an allegation. Thus, plaintiff\u2019s reliance on Moses is misguided.\nPlaintiff contends Family First failed to recommend that plaintiff investigate a reverse mortgage which plaintiff claims constitutes an unfair or deceptive act or practice. Reverse mortgages are governed by N.C. Gen. Stat. \u00a7 53, Article 21. There is no provision under N.C. Gen. Stat. \u00a7 53, Article 21, requiring a lender to recommend a reverse mortgage. In addition, plaintiff has failed to cite, and we have not found, any authority supporting her argument that a lender\u2019s failure to recommend a reverse mortgage is an unfair or deceptive act or practice. Therefore, we conclude this argument has no merit.\nPlaintiff finally claims that Family First sent plaintiff to a closing attorney who regularly closed loans for Family First and Flagstar and had no incentive to disclose the alleged irregularities of the mortgage to plaintiff. However, we have found no irregularities with regard to the mortgage that the closing attorney had a duty to disclose. In addition, plaintiff has not cited any authority supporting her claim that it is improper for a closing attorney to represent both the borrower and the lender. Thus, we again conclude plaintiffs claim has no merit.\nFor the foregoing reasons, we conclude plaintiff has failed to show any improper conduct on Family First\u2019s part, amounting to unfair or deceptive practices under N.C. Gen. Stat. \u00a7 75-1.1. Accordingly, we hold the trial court properly granted Family First\u2019s motion for summary judgment.\nIII.\nFinally, plaintiff claims the trial court erred in determining that the mortgage was not void and subject to rescission. During the summary judgment hearing, the court asked plaintiff\u2019s counsel if plaintiff was prepared to give money or other valuable consideration to Union Planters in exchange for the rescission of the mortgage. Plaintiff\u2019s counsel responded that plaintiff was not prepared to exchange money or other valuable consideration for the rescission of the mortgage. Our Supreme Court has previously stated: \u201cA complainant who seeks to have an instrument, obligation, or transaction canceled or set aside must return or offer to return whatever he may have received from the defendant.\u201d York v. Cole, 254 N.C. 224, 225, 118 S.E.2d 419, 420 (1961) (per curiam). \u201c \u2018[A]s a general rule, a party is not allowed to rescind where he is not in a position to put the other in statu quo by restoring the consideration passed.\u2019 \u201d Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 65, 344 S.E.2d 68, 74 (1986) (quoting Bolich v. Insurance Company, 206 N.C. 144, 156, 173 S.E. 320, 327 (1934)). Since plaintiff in this case is unable to return the loan proceeds, the court correctly determined that plaintiff was not entitled to rescission of the mortgage.\nIn addition, even if plaintiff was prepared to return the loan proceeds, the mortgage would still be binding. Plaintiff contends that this case involves fraud in the factum which would be sufficient to void the mortgage even in the hands of an innocent third party. See Jarvis v. Parnell, 4 N.C. App. 432, 167 S.E.2d 3 (1969). We disagree.\nFraud in the factum \u201c \u2018arises from a want of identity or disparity between the instrument executed and the one intended to be executed. . . .\u201d\u2019 Creasman v. Savings & Loan Assoc., 279 N.C. 361, 369, 183 S.E.2d 115, 120 (1971) (quoting Furst v. Merritt, 190 N.C. 397, 401, 130 S.E. 40, 43 (1925)). In the case sub judice, plaintiff testified in her deposition that she knew that she was obtaining a mortgage on her house, that the closing attorney explained the loan documents to her, and that she did not take issue with the loan or the loan documents. Therefore, this is not a case of fraud in the factum.\nIf there was any fraud involved in the execution of the mortgage, it was limited to Frye\u2019s alleged false representations that motivated plaintiff to obtain the mortgage which would be fraud in the treaty. Fraud in the treaty arises \u201c[w]here a party knowingly executes the very instrument he intended but is induced to do so by some false and fraudulent representation ....\u201d Mills v. Lynch, 259 N.C. 359, 362, 130 S.E.2d 541, 544 (1963). Further, our Supreme Court has stated that \u201c[i]f . . . the evidence discloses only fraud in the treaty, the note and deed of trust would be voidable as between the original parties thereto, but binding in the hands of a third person who was the innocent holder thereof.\u201d Parker v. Thomas, 192 N.C. 798, 802, 136 S.E. 118, 120 (1926). In this case, the evidence shows that Union Planters is an innocent purchaser of the mortgage. Therefore, rescission is unavailable, even if plaintiff was prepared to return the loan proceeds.\nFor the reasons stated herein, we affirm the trial court\u2019s order of summary judgment in favor of defendants Family First, Flagstar and Union Planters.\nAffirmed.\nJudge WYNN concurs.\nJudge TIMMONS-GOODSON concurs in part and dissents in part in a separate opinion.", "type": "majority", "author": "HUNTER, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\nconcurring in part and dissenting in part.\nBecause I disagree with the majority\u2019s conclusion that defendant, Family First Mortgage Corporation, was entitled to summary judgment, I respectfully dissent. I concur with the conclusion of the majority that all other named defendants were entitled to summary judgment.\nNorth Carolina General Statutes section 75-1.1 declares unlawful \u201cunfair or deceptive acts or practices in or affecting commerce.\u201d N.C. Gen. Stat. \u00a7 75-1.1(a) (2001). \u201cWhether a trade practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has in the marketplace.\u201d Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). \u201c \u2018To prevail on a claim of unfair and deceptive trade practice a plaintiff must show (1) an unfair or deceptive act or practice, or an unfair method of competition, (2) in or affecting commerce, (3) which proximately caused actual injury to the plaintiff or to his business.\u2019 \u201d Mitchell v. Linville, 148 N.C. App. 71, 73-74, 557 S.E.2d 620, 623 (2001) (quoting Spartan Leasing v. Pollard, 101 N.C. App. 450, 460-61, 400 S.E.2d 476, 482 (1991)). Section 75-1.1 provides two distinct grounds for relief. Id. \u201cIf a practice has the capacity or tendency to deceive, it is deceptive for the purposes of the statute. Id. \u201cUnfairness\u201d is a broader concept than and includes the concept of \u201cdeception.\u201d See id. \u201cA practice is unfair when it offends established public policy, as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\u201d See id.\nIn the instant case, plaintiff asserts numerous allegations to establish that Family First engaged in unfair and deceptive practices. I conclude that there exist genuine issues of material fact in at least three of plaintiff\u2019s assertions. First, plaintiff argues that Family First failed to conduct an in-person interview with plaintiff. Plaintiff further contends that the majority of the contact made was with her granddaughter. As noted in the majority opinion, plaintiff fails to provide, and we fail to find any cases in which a court has held that such an interview is necessary or proper. As stated supra, when considering whether a practice is unfair or deceptive, it is proper to consider the facts of the individual case. Therefore, it is proper for a jury to consider (1) whether, under the facts of this case, the failure of Family First to conduct an in-person interview with plaintiff affected commerce; (2) the impact of such a practice on the marketplace; and (3) whether the practice caused injury to plaintiff.\nSecond, plaintiff argues that her name was either forged by Family First or that Family First accepted forged documents. The majority asserts that plaintiff failed to provide sufficient evidence of forgery; the record, however, reflects that plaintiff provided evidence that the signature on the document differed from her own signature. A jury could conclude that accepting forged documents offends public policy, is unethical and can substantially injure consumers. In determining what is unfair and deceptive, the \u201cintent or good faith belief of the actor is irrelevant,\u201d and the \u201ceffect of the actor\u2019s conduct on the consuming public is relevant.\u201d Marshall, 302 N.C. at 548, 276 S.E.2d at 403.1 agree with plaintiffs contention that it is for a jury to decide whether the documents were forged and whether such a forgery should have caused Family First to question the circumstances of the loan.\nFinally, plaintiff contends that the loan application documents were backdated. Whether backdating documents in a business transaction could have the tendency to deceive and be unfair to the consumer is an issue for the trier of fact. As noted earlier, unfairness is a concept that includes deception.\nIn light of the fact that plaintiff provided evidence presenting genuine issues of material fact regarding potential violations of section 75-1.1, I would hold that the trial court erred in granting summary judgment in favor of Family First.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Hough & Rabil, RA., by S. Mark Rabil for plaintiff-appellant.", "Allman Spry Leggett & Grumpier, P.A., by W. Rickert Hinnant, for defendant-appellee Family First Mortgage Corporation.", "Kilpatrick Stockton, L.L.P., by Richard J. Keshian, for defendant-appellees Flagstar Bank, FSB and Union Planters Bank, NA.", "Jerry D. Jordan for defendant-appellee Lori Melton Frye.", "T. Dan Womble, Trustee." ], "corrections": "", "head_matter": "NELLIE H. MELTON, Plaintiff v. FAMILY FIRST MORTGAGE CORPORATION, FLAGSTAR BANK, FSB, UNION PLANTERS BANK NA, T. DAN WOMBLE as Trustee on a Deed of Trust made by the Plaintiff, and LORI MELTON FRYE, Defendants\nNo. COA02-221\n(Filed 18 February 2003)\n1. Unfair Trade Practices\u2014 mortgage \u2014 no contact between mortgage purchaser and borrower\nThe trial court correctly granted summary judgment for defendant Flagstar Bank on an unfair and deceptive practices claim arising from plaintiffs allegation that her granddaughter moved in with her and acted to defraud her of assets, including inducing her to borrow money on her home. Flagstar, which purchased the mortgage soon after its execution, had no contact with plaintiff and there is no evidence that the lender was acting as an agent for Flagstar.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to cite authority\nPlaintiff did not cite legal authority and abandoned on appeal her argument that a lender\u2019s conduct amounted to an unfair or deceptive practice (which allowed her granddaughter to engage in fraud) by not questioning the circumstances of a loan on plaintiffs house.\n3. Civil Procedure\u2014 summary judgment \u2014 allegation as to what testimony would be \u2014 insufficient\nThe trial court did not err by granting summary judgment for defendant Family First (the lender) in an action arising from a loan on plaintiff\u2019s house where plaintiff contended that a retired banker would have testified that there should have been an in-person interview before execution of the mortgage. No affidavit or other form of sworn testimony was submitted to the trial court in which the witness testified that industry standards had been violated.\n4. Mortgages and Deeds of Trust\u2014 lending fees \u2014 disclosed\nA lender did not fail to act in good faith by not disclosing the percentage of the loan proceeds that would be paid to the broker and mortgage company where plaintiff testified that she was provided with a list of all fees at the closing, and the closing attorney testified that he reviewed the fees and loan documents with plaintiff.\n5. Unfair Trade Practices\u2014 mortgage \u2014 forged signature\u2014 allegation insufficient\nThe trial court did not err by granting summary judgment on an unfair and deceptive practices claim for defendant Family First where plaintiff contended that defendant either forged plaintiffs name or accepted a forged signature, but provided no substantial evidence of the forgery.\n6. Unfair Trade Practices\u2014 summary judgment \u2014 no evidence of harm\nThe trial court did not err by granting summary judgment on an unfair and deceptive practices claim for defendant Family First where plaintiff argued that Family First improperly backdated loan application documents, but plaintiff failed to present any evidence of harm.\n7. Unfair Trade Practices\u2014 summary judgment \u2014 kickback\nThe trial court did not err by granting summary judgment on an unfair and deceptive practices claim for defendant Family First, which loaned plaintiff money on her house at her granddaughter\u2019s inducement, where plaintiff argued that Family First had failed to disclose that it would receive a kickback from the bank to whom it sold the mortgage.\n8. Unfair Trade Practices\u2014 mortgages \u2014 failure to recommend alternative\nA lender\u2019s failure to recommend a reverse mortgage was not an unfair or deceptive practice.\n9. Mortgages and Deeds of Trust\u2014 use of regular closing attorney \u2014 not an unfair practice\nThere was no merit to plaintiff\u2019s claim that a lender committed an unfair or deceptive practice by sending plaintiff to an attorney who regularly closed loans for defendant and who had no incentive to disclose alleged irregularities to plaintiff.\n10.Mortgages and Deeds of Trust\u2014 rescission \u2014 no return of proceeds \u2014 fraud in treaty\nThe trial court correctly determined that a mortgage was not void and subject to rescission where plaintiff was not prepared to return the loan proceeds. The mortgage would be binding in any case because plaintiff knew she was mortgaging her house and did not take issue with the loan documents; fraud in the treaty (arising from representations by plaintiffs granddaughter) renders the loan voidable between the parties but binding in the hands of an innocent purchaser of the mortgage.\nJudge Timmons-Goodson concurring in part and dissenting in part.\nAppeal by plaintiff from an order entered 6 November 2001 by Judge Beverly T. Beal in Forsyth County Superior Court. Heard in the Court of Appeals 13 November 2002.\nHough & Rabil, RA., by S. Mark Rabil for plaintiff-appellant.\nAllman Spry Leggett & Grumpier, P.A., by W. Rickert Hinnant, for defendant-appellee Family First Mortgage Corporation.\nKilpatrick Stockton, L.L.P., by Richard J. Keshian, for defendant-appellees Flagstar Bank, FSB and Union Planters Bank, NA.\nJerry D. Jordan for defendant-appellee Lori Melton Frye.\nT. Dan Womble, Trustee." }, "file_name": "0129-01", "first_page_order": 159, "last_page_order": 169 }